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A big week in copyright (and acronyms); ALRC, TPMs, ACTA, and TPPA

Submitted by Eloise Menzies on 06 July 2012

This past week has been a huge week for copyright, in Australia and internationally. Domestically, late Friday afternoon saw the release of both the finalised terms of reference for the ALRC’s inquiry into copyright exceptions, and the Attorney General’s review of TPMs. These two reviews will be keeping us at the ADA and ALCC busy for the rest of the year. We’re very pleased to see that the ALRC’s terms of reference highlight the importance of public access to and use of content, and the importance of innovation in the digital economy, in considering whether Australia requires new copyright exceptions. We’re also excited to see that the inquiry will consider whether the US doctrine of fair use will be appropriate in the Australian environment, as a balance to strong copyright protections, and that statutory licences will also receive specific consideration. An issues paper is due to be released in August, with submissions to the issues paper expected to be due by October.

In the mean time, we’re looking to get started on a submission to the Attorney General’s review of TPM exceptions right away, with the 17th of August being the closing date for submissions. The review is restricted to considering exceptions to circumvent access control TPMs, such as content scrambling systems on DVDs or restrictions on the read aloud functionality of ebooks. We will be seeking out evidence from our members demonstrating the adverse impact of TPMs in their institutions on activities for which they would like an exception in the coming weeks.

Internationally, we saw a critical win on the European stage with the European Parliament refusing to ratify the Anti-Counterfeiting Trade Agreement, by a massive majority of 478 to 39 votes. It is encouraging to see the Members of the EU Parliament heeding the public concerns over the secrecy of the agreement and its potential to impact civil liberties. The EU Parliament’s rejection of ACTA has come hot on the heels of our own Joint Standing Committee on Treaties advising against Australia’s ratification of the agreement in its report released last week. You can read more about the JSCOT report in last week’s blog post. Without the support of the 22 European nations who initially signed the agreement, ACTA's future is looking shaky, needing ratification by at least six of the 11 signatories to come into force. Without the EU, Australia, Mexico, and possibly Switzerland, this may prove difficult.

ACTA may be on its last legs, but the Trans-Pacific Partnership negotiations are still charging ahead, with the latest round of negotiations in San Diego taking place this week and finishing up on the 10th of July. The latest development on this front has been the announcement that the US Trade Representative is seeking to introduce language on limitations and exceptions to copyright in the TPPA. While it’s great to see the importance of limitations and exceptions being recognised in the TPPA, we can only be cautiously optimistic at this point. Without access to the actual text that is being considered, we cannot be sure that the proposed language will not limit, rather than enable, Australia’s ability to implement new exceptions once the agreement is signed.

Given that the ALRC’s inquiry into exceptions is directed to have regard to international agreements and developments, it is particularly important to ensure that any text that we agree to in the TPPA does not restrict the scope of exceptions that may ultimately be recommended in the ALRC’s report. We can only hope that that the TPPA negotiators are paying close attention to the fate of ACTA this week, and that they will bring wider public concerns over accountability and access to the table.